Where is the "Win" in Divorce Litigation?

Celebrity divorces make headlines, but most divorcees aren’t celebrities. They are everyday people in a tough place emotionally.  They work hard, love their kids and want to be involved in their lives.  They have a mortgage, a few credit cards, a car note and limited resources to meet their obligations. They are distrustful, hurt and scared. They need encouragement, guidance and counsel. They want reassurance, security and closure.  And they want it quickly and inexpensively.

Divorcees need to vent anger and tell their story.  Society tells them to go to court and take a pound of flesh.  The focus is on “winning.”  But when a divorcee thinks she spent a fortune on a lawyer and didn’t get what she wanted, the client blames the lawyer who worked hard and gave her that day in court.  Who won? 

As a mediator, I work with everyday people and their lawyers in divorce cases.  Most lawyers recognize that a judge making decisions for their clients is typically not the best solution.  However, it is difficult for clients to hear that compromise is a must to reach a mutually fair result.  Often, the “let’s try the case” approach wins out. Litigating a divorce can increase the pressure for divorcees - sitting in the courthouse the day of trial, facing two options: 1) engaging in fast moving settlement talks, then signing a fill-in-the-blank agreement to address the most important aspects of their lives or 2) Having a third party, a judge, make the final call on a deeply personal matter that becomes public record.  No wonder divorce clients are frequently dissatisfied!

Our local court backlogs intensify these frustrations for clients and attorneys:

Client - Why is this taking so long?  Everyone is dragging their feet.  Why do they need all these documents?  Do I have to answer all these questions?  All I want is to get this over with and move on.  The lawyers are running up fees.  The judge doesn’t get it.  This is awful.  I’m wasting time and money and getting nowhere.

Lawyer - I did everything in my power. I questioned the other side extensively.  During the many months we waited for trial, I subpoenaed cell phone records, bank statements, and the kids’ teachers.  I spent several days preparing for trial and tried the case.  Now my client isn’t happy and doesn’t want to pay my bill.  You can’t win with divorcees – they are never happy.

Divorcees should be proactive in researching their options to reach an agreement that provides closure and a foundation for moving forward. When the parties walk away with more anger and frustration, a court order nobody thinks is fair and distaste for the lawyers who have worked hard on their behalf, nobody wins. 

Statistics show that couples who collaborate to resolve their divorces have greater satisfaction with the process and are more likely to abide by the terms of an agreement they helped shape. Resolution is reached quickly and with less expense than waiting for a trial – especially with courthouse budget cuts.  Divorcing couples need to explore all options - not just on the best strategy for “winning” at trial. Mediation allows individual stories to be told, needs expressed, and outcomes shaped confidentially (no dirty laundry is aired on the record). With patience, compromise and hard work, divorcees can reach results that are right for them and their family.

Saving time and money, bringing closure while preserving dignity, maintaining civility, and resolving hostility is where the “win” really lies.

Myths and Misconceptions

I recently attended a family law seminar. Many good ideas were exchanged and useful information was shared by a panel of very talented lawyers and judges.  However, one recurring theme struck me – just how expensive divorces can be and how nobody really takes the time to address the cost for everyday folks.

One presentation was a mock mediation.  Though very well done, the only fact pattern presented involved above average income clients.  In the scenario, the parties were a college professor and a real estate agent who both had 6-figure salaries, two houses, $765,000 in retirement savings, $20,000 in cash savings and only $5,000 in credit card debt.  A cost of $30,000 for one side to prepare for and try the case was suggested without anyone involved blinking an eye.  I thought about the majority of the folks I help - they don’t fit that profile. And I bet most of the lawyers there didn’t have clients that fit that mold either. 

There was a panel discussing “unusual issues” in divorce cases.  They focused on issues for high asset divorces.  One discussion was on the use of post-nuptial agreements for the “society pages” set.  I found one discussion disturbing - a suggestion that a bill would be proposed next year to allow wealthy people to hire “private judges” to handle their cases as if they were elected sitting trial judges.  The cases would have all rights of appeal as any other divorce case, but people who could afford to hire a retired judge to handle their case would not have to wait with everyone else in the backlog of cases waiting for trial.  One speaker justified the cost by saying, “We can pay the judges mediator rates since people with money have been using mediators for years anyway.” 

I was left shaking my head – first at a proposal for the wealthy to bypass elected judges and hand pick who would handle their cases while the average person is stuck in the bog of court backlogs – quick justice for the highest bidder.  Second at the idea (misconception is a better word) that only people “with money” can mediate their cases.  It is no wonder the myth that mediation is an expensive undertaking is so pervasive.  Mediation is a cost saving option for everyone – not just the “society pages” set.  There were lawyers from all over the state at this seminar.  Many came from smaller rural counties.  The takeaway message – your middle class clients are stuck waiting for a trial, so don’t even bother looking at alternatives.

Collaborative law was also discussed.  This is a concept I wholeheartedly support.  But again, there seems to be a stigma that it is only an option for people with above average financial means.  I am excited to see the collaborative community taking shape in Alabama and am encouraged by the people I see taking a lead in this area.  They will have my full support. Any opportunity for people to work together to resolve divorces is worthwhile.  I hope the collaborative model proves to be more widely available than other options I heard discussed.

Mediation is available for anyone who wants to save money, preserve dignity and respect, and quickly and confidentially resolve their dispute – be it a divorce, business dispute, etc.  It is not just a high dollar option.  I hope that the folks who plan these seminars in the future will consider presenting ways to meet the financial challenges faced by everyday people going through a divorce.  I will do my part to keep putting the message out there.